Case: 13-12163   Date Filed: 01/08/2014   Page: 1 of 3


                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 13-12163
                          Non-Argument Calendar
                         _____________________

                 D.C. Docket No. 6:13-cv-00083-ACC-DAB



CONSTANCE MITCHELL, an individual,
                                                             Plaintiff-Appellant,

                                   versus


KATHLEEN KAMINSKI, etc.,
                                                               Defendant,

UNITED STATES OF AMERICA,

                                                           Defendant-Appellee.
                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                       _______________________


                             (January 8, 2014)

Before TJOFLAT, JORDAN, and HILL, Circuit Judges.
              Case: 13-12163      Date Filed: 01/08/2014   Page: 2 of 3


PER CURIAM:

      Constance Mitchell brought suit against Kathleen Kaminski under the

Federal Tort Claims Act (the “FTCA”) seeking damages resulting from an

automobile accident in which the two were involved. Upon its motion, the United

States of America was substituted as the defendant after it certified that Kaminski

was acting within the course and scope of her employment with the United States

when the alleged tort occurred.

      The United States filed a motion to dismiss pursuant to 28 U.S.C. § 2675(a),

because Mitchell had not filed an administrative claim with the appropriate federal

agency before bringing suit. The district court entered a “Milburn Order,”

informing Mitchell that it would take the motion to dismiss under advisement and

that she should submit her response in opposition. Mitchell submitted a response

arguing that Kaminski’s employment status was a jury question. She did not

address whether she had filed an administrative claim, or any issue regarding

equitable tolling of the administrative claims limitations period.

      The district court dismissed Mitchell’s FTCA claim for lack of jurisdiction,

noting that Mitchell had never complied with section 2675 and so had not

exhausted her claim administratively. The court also observed that because

Mitchell never filed an administrative claim she had failed to comply with the

limitations period for administrative claims set forth in 28 U.S.C. § 2401(b).


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                Case: 13-12163    Date Filed: 01/08/2014     Page: 3 of 3


       In her motion for reconsideration, Mitchell argued for the first time that she

was entitled to equitable tolling of the administrative limitations period due to her

inability to ascertain information from Kaminski. The district court held that

Mitchell did not meet the standard for reconsideration of the dismissal, i.e., an

intervening change in the controlling law, the availability of previously unavailable

evidence, or the need to correct a manifest injustice. Mitchell brought this appeal.

       We have reviewed the record and the briefs filed in this case and conclude

that the district court’s judgment of dismissal is due to be affirmed. Mitchell’s

failure to file an administrative claim in this case – a failure that continued through

the dismissal of this case – is fatal to her arguments on appeal. Even if equitable

tolling were available to relieve Mitchell of an untimely filing of her administrative

claim, it cannot relieve her of the effect of her failure to file an administrative

claim at all. Mack v. Alexander, 

, 489 (5th Cir. 1978) (“[I]t is

essential that a proper administrative claim first be filed before suit in the district

court can be commenced. The plaintiff has not met this requirement, therefore this

suit is barred.”). Furthermore, she waived this argument by failing to present it to

the district court prior to dismissal of her suit. Accordingly, the judgment of the

district court is

       AFFIRMED.




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